What is the Parole Board?

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The Parole Board is an independent body that carries out risk assessments on prisoners to determine whether they can be safely released into the community.

It manages the early release of prisoners serving fixed-length sentences of four years or more; the release of prisoners who are serving life sentences or indeterminate sentences for public protection; and the re-release of prisoners who have been given life or indeterminate sentences and were then re-imprisoned.

Some prisoners seeking release may have to attend a hearing before Parole Board members.

Up to three members of a panel will decide whether to release the prisoner based on a file of documents including information on the inmate’s behaviour in prison, their plans once released and risk of committing further crimes. Medical, psychiatric and psychological evidence can also be heard.

As well as the prisoner, a solicitor, psychologist and witnesses could attend. The victim of the prisoner’s offences may also be present.

The Parole Board has 234 members who make the assessments and decisions and employs 120 members of staff to support them.

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The case was brought by Paul Wakenshaw, a British prisoner, who argued that although the Parole Board was a de facto court under both common law and the European convention on human rights, Hardwick’s removal proved it lacked the independence of a true court.

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Like Worboys, Wakenshaw has been serving an indeterminate imprisonment for public protection (IPP) sentence. In 2009 he was sentenced to a minimum of six years’ imprisonment for two offences of robbery and for using an imitation firearm. In 2012, IPP sentences were scrapped by the then justice secretary, Kenneth Clarke, who called them a stain on the justice system.

Wakenshaw is three years over that tariff and due to appear before the Parole Board, but he has argued he does not have a fair chance of being released following the Worboys controversy.

He said it was constitutionally improper for the justice secretary to have requested that the head of a judicial body resign without any procedure being followed to determine whether there were grounds for his removal. Wakenshaw also sought an order postponing the recruitment of a new chair, for which interviews are scheduled to take place this month.

On Tuesday Mr Justice Mostyn granted Wakenshaw permission to judicially review the independence of the board on the grounds there was a lack of security of tenure for Parole Board members (including the chair) – as evidenced by the circumstances in which Hardwick offered his resignation.

The judge also said that if the justice secretary decided to remove a member of the Parole Board, there was no mechanism to ensure it was a fair decision.

Mostyn, in a proposed judicial declaration, said: “The period of appointment (three or four years, renewable for three or four years) of Parole Board members coupled with the power of the secretary of state to remove a member … without recourse to any procedure or machinery to determine the merit of a decision to remove him or her on one or other of these grounds, means that the provisions for tenure of Parole Board membership fail the test of objective independence.”

The judge added: “I think that the reasonable, albeit well-informed, observer could conclude that the short term of appointment, coupled with the precarious nature of the tenure, might wrongly influence a decision that had to be made.”

The judge also criticised the Ministry of Justice for failing to act on an earlier divisional court ruling – R (Brooke) v Parole Board in 2008 – that the appointment term had failed the test for objective independence. Mostyn rebuked the MoJ, saying: “Remarkably, the terms of appointment have remained exactly as they were at the time of the Brooke case.” He said he was told that the failure to amend the terms was an oversight and that the MoJ would, as a matter of urgency, consider revisions.

Hardwick, in a statement to the court, said Gauke had twice told him he “did not want to get macho” with him – as revealed in the Guardian in June – saying: “I remember it because I thought it was an odd phrase to use. I understood it to be a clear threat.”

Mostyn said: “In my judgment it is not acceptable for the secretary of state to pressurise the chair of the Parole Board to resign because he is dissatisfied with the latter’s conduct. This breaches the principle of judicial independence enshrined in the Act of Settlement 1701. If the secretary of state considers that the chair should be removed, then he should take formal steps to remove him pursuant to the terms of the chair’s appointment.”

The judge has stayed proceedings for three months to enable Gauke to act on his proposed declaration that the Parole Board lacks independence. If the MoJ fails to respond satisfactorily within that time, Wakenshaw would proceed to the judicial review.

The judge refused to grant an injunction halting the next chair’s appointment saying this would be “a disruptive remedy”.

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Wakenshaw’s lawyer, Dean Kingham, of Swain & Co, said: “This claim was brought due to concerns that the minister was interfering with the judicial independence of the Parole Board, which has the same status as a court. The circumstances of the forced resignation, if the chair had had employee status, probably as Justice Mostyn referred to, would have amounted to constructive dismissal. The judgment serves as a timely reminder that the secretary of state for justice cannot seek to usurp the board’s independence.”

An MoJ spokesperson said: “The Parole Board is independent from the government and ministers play no role in the decisions that it makes. Today’s judgment does not call that into question.

“We will carefully consider this judgment in relation to the tenure and removal of Parole Board members – we are looking at how we can address these concerns. It would be inappropriate to comment further while legal proceedings are ongoing.”